Labor: The dos and don’ts of using of arrest and conviction records to deny employment

“Have you ever been convicted of a felony?” This is one of the most common questions on employment applications. However, according to the Equal Employment Opportunity Commission (EEOC) guidelines, this broad question may give rise to a viable discrimination claim.

While there is currently no federal law that prohibits an employer from asking about arrest and conviction records, the EEOC has determined that “using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.”

Employers have many legitimate business reasons to inquire into the criminal background of potential employees. So, how does the employer balance those legitimate business reasons with the concerns raised by the EEOC in not limiting the employment opportunities of some protected groups?

First, if inquiring about arrest records, the employer must first determine whether its state limits or prohibits the use of arrest records as the basis of an employment decision. Some states have no restrictions, while others restrict the employer from inquiring as to certain types of records (e.g. expunged), while others prohibit the inquiry into nonconviction arrest records altogether.

Assuming the employer is in a jurisdiction that allows inquiry into arrest records, the EEOC has indicated that the employer should not rely exclusively on those arrest records. Arrests are not convictions and do not indicate that the employee actually committed the crime(s) of which he or she is accused. Instead, if an employer learns of an arrest of a potential employee, the employer should allow him/her the opportunity to explain the arrest and the circumstances surrounding it. The employer should then make a reasonable effort to determine whether the potential employee’s explanation is credible, and whether the credible justification would still exclude the individual from being qualified for the position. In determining whether the arrest still disqualifies the individual from employment, the employer must determine that the applicant cannot be trusted to perform the duties of the position. The employer must consider: the nature of the job; the nature and seriousness of the offense and the length of time since the arrest occurred.

Like the use of arrest records, use of conviction records by the employer is also controlled by state law. Again, several state laws limit the use of conviction records by prospective employers. Before denying employment based upon conviction records, therefore, the employer must make sure the laws of its state does not restrict or prohibit such use.

Assuming there is no state law preclusions regarding the use of conviction records, the EEOC has established that the employer must follow the same procedures set forth above before denying employment based on convictions. That is, the prospective employer must: allow the employee to explain the conviction and the circumstances surrounding it; make a reasonable effort to determine if the explanation is credible; and, determine whether the applicant cannot be trusted to perform the duties of the position.

To defend itself from any potential claims resulting from the denial of employment based upon legally obtained arrest or conviction records, the employer should consult with legal counsel to determine whether a legitimate business reason exists for the denial of employment. Also, records should be maintained documenting the legitimate business decision. These records can be maintained by the human resources department. Ideally, the records will be in the form of communications with legal counsel marked “privileged and confidential.”

Lastly, before investigating applicants for employment through the use of criminal record checks, the employer must advise the applicant in writing that the background check will be conducted, obtain the applicant's written authorization to obtain the records, and notify the applicant that a conviction will not automatically result in disqualification from employment.

Contributing Author

Tina M. Maiolo

A member of Carr Maloney, P.C., Tina Maiolo partners with clients to operate and grow their businesses. She focuses her legal practice in...